Appellate Decisions

On October 31, 2012, the Court of Appeal found that the 11-year-old child in In re Destiny S. (2012) 210 Cal.App.4th 999, was not placed at risk when her mother tested positive for marijuana and methamphetamine. LADL Carolina Villamil refused to settle this case on behalf of her client, despite knowing that her client had tested positive for methamphetamine. Instead, she presented evidence to the court that the child was happy and healthy, her home was neat and clean, and the school indicated the only issues were tardiness. The Court took its previous finding in the case In re Alexis E. that “use of marijuana without more does not bring a minor within the jurisdiction of the dependency court” and “the same is true with respect to the use of hard drugs.” For the first time, based on LADL’s arguments, we saw the Court treat methamphetamine the same way it treats legal substances.

Not long after Destiny S. was decided, on December 5, 2012, the Court of Appeal expanded the legal rights for parents in In re Drake M. (2012) 211 Cal.App.4th 754. Here, Father was caring for a 9-month-old baby and was also using medical marijuana.Rather than concede neglect, LADL Lori Davis chose to have the father testify on his own behalf to explain in his own words how he cared for his child. On appeal, the court clarified what DCFS must prove when asserting a parent’s drug use places a child at risk.

The Court stated that a finding of substance abuse, for purposes of Welfare & Institutions Code §300(b), must be based on evidence sufficient to show: 1) the parent/guardian had been diagnosed as having a current substance abuse problem by a medical professional; or 2) parent/guardian has a current substance abuse problem as defined in the Diagnostic and Statistical Manual of Mental Disorders.

While Drake was a child of tender years, and therefore it could have been enough for DCFS to show that Father was merely a drug user, in this case, Drake was so well-cared for, the Court could not find any specific, defined risk of harm to the child, and the case was therefore, on appeal, dismissed.

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In 2014, propelled by LADL arguments, the Court went even further. InIn re Rebecca C. (2014) 228 Cal.App.4th 720, the Court found that even though the evidence supported Mother was in fact abusing methamphetamine, that did not rise to a level supporting jurisdiction over the child when there was no connection between the mother’s drug abuse and the care she was providing to her child. LADL Emily Berger set this matter for a no-time-waiver trial, to get the fastest trial date available, and was able to work with minor’s counsel to gain her support at the trial level to argue for dismissal.  The Appellate Court continued its trajectory to reinforce that dependency court jurisdiction is not automatically established by the mere fact of substance abuse.

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In 2020, our organization won published case law that a woman’s use of substances during pregnancy does not automatically rise to the level of jurisdiction in the seminal case In re J.A. (2020) Apr 01, 2020 47 Cal. App. 5th 1036. In this case, both the mother and the child tested positive for marijuana at the birth of the child. LADL David Alaynick made a clear argument that there was simply no evidence of harm to the children due to mother’s use of edibles. The Appellate Court agreed and found there was no evidence that Mother’s ingestion of medical marijuana during her pregnancy injured her child and held that the mere fact of marijuana use while pregnant is not enough to trigger dependency court jurisdiction.